First Nation leaders say Ottawa's decision to give the Northern Gateway pipeline the go-ahead will prompt a new push to halt the project through the courts, in public campaigns, and – if necessary – by protests on the land.
Project proponent Enbridge Inc. says that 60 per cent of First Nations along the pipeline route have signed equity agreements, although none is being identified. The company said it will continue to consult and reach out to aboriginal communities along the pipeline right-of-way.
However, several First Nations say they will continue to fight the project, no matter what the federal cabinet has said.
"Unfortunately Ottawa didn't get the message that they're approving a dead project," Art Sterritt, executive director of the Coastal First Nations, said Tuesday.
"At the end of the day, there are those including myself who are willing to go there and stand and say, 'You're not moving those pipelines through our territory.'"
Oil-tanker spills and loss of wildlife habitat top the list of First Nation concerns about the $7.9-billion project to transport crude – mostly oil-sands bitumen – from Alberta to the West Coast for export to Asian markets. Immediately after Tuesday's decision, a news release signed by two dozen B.C. First Nations went out with notice that they will go to court pursue "all lawful means" to stop the pipeline.
Months before Tuesday's green light from Ottawa, three First Nations – the Haisla, the Gitga'at and the Gitxaala – launched judicial review applications to challenge the legitimacy of the National Energy Board's joint review panel decision to conditionally approve to the project. If leave to appeal Ottawa's decision is granted, a number of new and related court actions will proceed to the Federal Court of Appeal – likely in the fall.
"This battle is transitioning into the courts," said Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs. "Without question this will represent protracted litigation that will span a number of years."
The legal situation in British Columbia is particularly complex because most First Nations there have no treaties, but still claim a title to traditional land. First Nations have also argued the National Energy Board has been remiss in its constitutional duty to consult and accommodate their concerns about the project. Now Ottawa faces the same criticism.
"We will be challenging the order-in-council decision in court," said Ellis Ross, chief councillor of the Haisla First Nation near Kitimat, the proposed terminus of the pipeline. "I didn't see any mention about Canada's duty to consult and accommodate."
But he said the Haisla will keep an open mind on proposals to export liquefied natural gas. "I'm still interested in the economy and helping my people out of this hole that we've been dug into over the last 50 years, and LNG is a way out of that."
Robert Janes, a lawyer for the Gitxaala First Nation, said changes to the energy project approval process introduced by the Conservative government in 2012 have added to procedural uncertainty. "It really has sent everyone into uncharted waters here."
Other First Nations, including clans from the inland Wet'suwet'en people, are promising to block Enbridge employees from lands along the pipeline route they say they have never ceded. Women from the Gitga'at First Nation say they will lead a symbolic blockade on Friday by stretching a crochet of yarn across Douglas Channel to demonstrate their opposition to oil tankers in the coastal waters. Chief Martin Louie of the Nadleh Whut'en First Nation said he is now looking to the provincial government to use what power it has stop the project.
Ken Coates, a senior fellow at the Macdonald-Laurier Institute for Public Policy, an Ottawa think tank, said a big question is whether Canada is prepared to develop a different kind of relationship with First Nations.
"Are we prepared to share not just decision-making authority and a small level of oversight, but are we prepared to share prosperity with First Nations people?"